Guideline 1:11
At the beginning of each hearing, the judge should ask the plaintiff whether there are any outstanding court orders involving the same parties in the same or a different court. When a non- Probate and Family Court judge issues an order regarding minor children that is inconsistent with a Probate and Family Court support or custody order, including parenting time orders (formerly referred to as visitation orders), c. 209A requires that the court immediately transmit a copy of the inconsistent order to the Probate and Family Court as the Probate and Family Court will ultimately need to address the inconsistency. Once the Probate and Family Court has acted, the Probate and Family Court shall thereafter retain final jurisdiction over any custody, contact, or support orders regarding minor children, subject to any subsequent emergency orders which continue to be available under c. 209A in a court department other than Probate and Family Court. See Guideline 13:00: Amending c. 209A Orders to Make Consistent with Subsequent Probate and Family Court Orders Regarding Children. The statute provides that this provision “shall not be interpreted to mean that superior, district or Boston municipal court judges are prohibited or discouraged from ordering all other necessary relief or issuing the custody and support provisions of orders pursuant to [c. 209A] for the full duration permitted under subsection (c).” G.L. c. 209A, § 3.
When issuing orders regarding minor children, the factors set forth in Guideline 4:03A: Ex Parte Orders Involving Minor Children, should be considered.
Commentary
Chapter 209A expressly authorizes the Superior Court, District Court, and Boston Municipal Court departments of the Trial Court to issue orders regarding minor children despite the existence of an inconsistent order by the Probate and Family Court. G.L. c. 209A, § 3. Courts other than Probate and Family Court are still precluded from setting parenting time schedules or conditions, but are permitted to issue an inconsistent no contact or custody order on an emergency basis to allow the parties time to obtain a hearing before the Probate and Family Court. Often, the inconsistent provision will be a no contact order that would affect an existing parenting time schedule ordered by the Probate and Family Court.
If issuing a c. 209A Order after a hearing after notice that contains provisions inconsistent with an active Probate and Family Court custody, parenting time or support order, the judge should inform the clerk who will enter a specific docket code in the c. 209A case that will trigger an email report to designated recipients of the Administrative Office of the Probate and Family Court. The Probate and Family Court will review the case information to identify the appropriate division of the Probate and Family Court to schedule a hearing on the inconsistent order. That hearing should be scheduled within thirty days as set forth in the statute. G.L. c. 209A, § 3. If the Probate and Family Court issues superseding orders, the Probate and Family Court judge must also amend the c. 209A Order in accordance with Trial Court Administrative Order 21-3. See Guideline 13:00: Amending c. 209A Orders to Make Consistent with Subsequent Probate and Family Court Orders Regarding Children.
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| Last updated: | October 20, 2025 |
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